Citation Nr: 1314358 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 07-25 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including due to exposure to asbestos and/or other toxic chemicals. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty in the U. S. Air Force from May 1964 to September 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Board remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration - including especially obtaining details from the Veteran regarding how, when, and in what quantities he was exposed to asbestos and other chemicals during his service, attempting to verify his exposure to these substances, obtaining supporting rationale from F.W.B., D.O., who had submitted a favorable etiological opinion, and providing the Veteran a VA compensation examination for an additional medical nexus opinion. Since then the Veteran has submitted certain evidence that in turn necessitates still additional development of his claim. So the Board is again remanding his claim to the RO via AMC in Washington DC. The Board also sees that, in a February 2011 Appellate Brief Presentation, the Veteran's representative also claimed entitlement to service connection for coronary artery disease (CAD). Since, however, the RO has not initially considered this additional claim as the Agency of Original Jurisdiction (AOJ), the Board is referring this claim to the RO/AMC for appropriate development and consideration since the Board does not presently have jurisdiction to consider it. See, e.g., Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). REMAND In a written statement received in August 2011, so since the Board's prior remand, the Veteran indicates he is receiving treatment, including oxygen for his COPD, at the VA Health Center in Orlando, Florida. Records of this treatment are not in the claims file, however, and, being pertinent to this claim, must be obtained. See 38 C.F.R. § 3.159(c)(2) (regarding the amount of effort that must be expended in obtaining records in the custody of a Federal department or agency, so including VA). But see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating VA has constructive, even if not actual, notice of the existence of these additional records since generated and maintained within VA's medical healthcare system, so deemed to be in VA's possession even if not physically in the file). The Veteran initially claimed that he developed COPD because of exposure to asbestos during his military service. Later, he asserted that he was exposed to several toxic substances during his service, including the asbestos, any one of which might have caused his COPD. He contends the record includes doctors' opinions linking his COPD to his exposure to aircraft paints and solvents (trichloroethene and zinc cromate) while performing his duties and responsibilities in service as an aircraft mechanic. Indeed, there are three medical opinions of record addressing this determinative issue of causation, one obtained during the rather recent VA compensation examination that was scheduled following and as a result of the Board's prior remand of this claim and two others obtained by the Veteran in support of his claim. He submitted the most recent opinion since the Board last remanded his claim. This opinion from K.H.B., M.D., dated in April 2012, includes a statement relating the Veteran's reactive airway disease syndrome to his exposures to zinc chromate and trichloroethene. But similar to the earlier opinion from F.W.B., D.O., which the Board discussed in its prior remand, Dr. K.H.B.'s opinion does not include any underlying medical basis or rationale and does not cite to research or scientific literature on the subject. So just as in the case of Dr. F.W.B.'s opinion, Dr. K.H.B.'s opinion is an insufficient basis to permit granting this claim, especially since the VA compensation examiner that evaluated the Veteran previously on remand in February 2012 concluded unfavorably against this posited correlation between the Veteran's COPD and his military service. Because this claim is being remanded for another reason, thereby delaying its adjudication regardless, the Board believes an effort should be made on remand to have Dr. K.H.B. provide additional comment, which includes supporting rationale. To reiterate, most of the probative value of a medical opinion comes from its underlying reasoning, not instead merely from the conclusion ultimately reached or just because the claims file was reviewed. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"). Also helpful would be a more comprehensive statement from the Veteran describing how, in his capacity as an aircraft mechanic, he was exposed to asbestos. He has submitted clear statements describing how his duties exposed him to other toxic chemicals, but not how they exposed him to asbestos. More detailed information is needed to attempt to verify the alleged exposure. Accordingly, this claim is again REMANDED for the following additional development and consideration. 1. Obtain and associate with the claims file all records of the Veteran's pulmonary/respiratory treatment, including the prescription of oxygen therapy, at the VA Health Center in Orlando, Florida. Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these additional records as this VA regulation requires. Also appropriately notify the Veteran if unable to obtain these additional VA records. 38 C.F.R. § 3.159(e)(1). 2. As well, contact Dr. K.H.B. and ask that he provide an addendum statement (supplemental comment) discussing the underlying medical rationale of his opinion, including medical literature or results of empirical research supporting his April 2012 opinion. 3. Ask the Veteran to submit a more comprehensive statement describing how, in his capacity as an aircraft mechanic, he was exposed to asbestos. Based on the information provided, attempt to verify his alleged exposure, including, if necessary, by obtaining information from the Air Force concerning job titles and duties and probabilities of exposure given those duties. 4. Then readjudicate this claim in light of this and all other additional evidence. If it continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Board intimates no opinion as to the ultimate disposition of this claim warranted, but advises the Veteran that he has the right to submit additional evidence and argument concerning this claim. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).